The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1887-12-14

GIVES AN IMPLIED POWER
TO levy tax TO pay it. Omitted States VS..
New Orleans, 9S U. s., 3Sll.
So, an express power to obtain money on
loan for works Of internal improvement
gives implied power to guaranty railway
bonds. Savannah vs. Kelly, 106 u. S., 1Si.)
In Nashville va. Ray 40 Wall, 1861, four of
the eight judges held that the city of Nash
vile had power TO issue negotiable notes TO
pay it's debts, even though its charter did
not give power TO borrow money. In Ten
nessee the doctrine of implied and essential
powers in q municipal corporation is firmly
established. Cook vs.. Sumner $. NJ. Co.,
l Sneed, TIA Nichols vs. Mayor, Humph.,
282 Bristol W.. Dixon, $ Ileisk., SGi; Mem
phis vs. Gas Co., 0 Heisk, 532; Adams vs..
NJ. l.. K. II. r. Co., 2 Cold, Gij.)
THE POWERS EXIST.
Now applying these principles Of con-
struction, there seems TO be little doubt that
the power claimed by the commissioners
| exists. Amongst the agencies" and gov
crning instrumentalities" established by the
! statute is a board Of health, and the impor-
lance OF this agency, in viewof the epidemics
that had occurred in Memphis when the act
was passed has already been adverted 10 rs
in the mind Of the Legislature. This
agency" of immense value 10 the people
and the well being OF the city, Is about
| 10 be destroyed for the want Of
means; and the means are in hand. but the au-
thority to use them for this purpose is ques-
| toned. Other agencies are in express terms
established which require the expenditure Of
money. The commissioners cannot raise
money by taxation, but they have the power
| of "appropriating' means already raised
This power of appropriation is not a sub
staniivc independent power Of government
| like taxation, but merely incidental 10 gov
ornamental powerSe | have no doubt that
| the power 10 use these unappropriated funds
| TO meet tho exigencics Of any branch of mu-
nicipal government exists as an incident and
as essential 10 the powers expressly granted
| Besides, think it exists under the general
| clause giving the local government power
over all other affairs in the Taxing District
in which the peace, safety or general welfare
Of the inhabitants is interested" In answer
| to the argument pressed for the complainant
| that this clause restricts aud does not enlarge
the specific powers granted. ! quote from
Chief Justice Marshalfs opinion in McCu-
loch vs. Maryland, in discussing the like
clause in the constitution Of the United
States: "lts terms purport TO enlarge, not to
| diminish, the powers vested IN the govern
ment. II purports 10 be an additional
power, not a restriction on those already
| granted" IL is true that what is denomi-
mated the general welfare clause in charters
IL usually invoked TO authorize the exercise
of police and other such powers. But IL will
be found that this Is 80, because the Ian
guage employed in most cases refer TO the
passage Of ordinances relating 20 some such
| power, and also because generally the au-
ihority involved in the particular eases is of
tbat sort But the language OF the clause
now under discussion
~ PARTICULARLY broad,
embracing ''all other Affairs" aud not refer
ring 10 the passage Of ordinances or any par
ticular branch OF government. There Is no
reason why II should not embrace the inci-
dental power Of npproprating money. Ia
Jones VI, Richmond lis Graft 5l7, the SUI
prcme court Of the State Of Virginia, under
this clause, sustained an ordinance ordering
the destruction Of whisky and making prom
ise 10 pay the value thereof 10 the owner. and
| the authority Of this was recognized by the
supreme court OF the United States in an
other case from Virginia involving a like
| question.
do not think that the authority to use
the fund arising from fines, foriciiures.
| etc, under the language "other expenses"
~ claimed by the defendant, exists. ] am
satisfied that these words, .othcr expenses"
| were not intended 10 give the authority 20
use funds IN the manner proposed. think
| the words 'othcr expenses" embrace only
the ordinary aud incidental expenses Of the
officers aud Office expenses. "Noscitur a
sociis." The fund as well as the other j.
covered by power conferred by the net a.
construed under the principles Of this opln-
ion.
In Memphis W. Gas Co. % IIeisk G5),
| Chancellor J. Nicholson says: whenever
the lighting II the city with gas is found 90
be corporation purpose, then upon the
strictest construction Of the powers Of the
corporation everything necessary and proper
| for carrying into execution the granted
powers may he lawfully rcsorted to" la
Nichols vs.. Mayor 90 Hump, 262l Judge
Finley says But this strict construction
has never confined the execution Of the
| power ~ It's word aud letter, but everything
necessary and proper for carrying into exc.
ouiion the granted power has always been
conceded by ~ strictest construciionists."
A. already shown, there arc
MANY EXPRESS rowEHs
granted by this law--it establishes n board oi
health ~ one of the departments ~ govern.
mcnt. aud one Of the leading and most i'm
pofiant features Of the legislation. a. before
stated, Is 10 protect the city from pcsillcnc,
and 10 preserve the health OF the inhabitants
Aud shall Il be said that thc~c express power
shall fail Of execution, aud these leading
and vital ends 81 the government shall b,
defeated because 'the word aud letter ol
the law do not provide the power io "a,
means on hand and not appropriated "a
other purttpscs2 Can Il I've Imagined thai
the Legislature did not apprchcnd n rccur
ryncc II cpidcmics Gin q locality whcrc thcy
bal been - frequently that would rcquir'
extraordinary cNpcnses and that such and
like cNircnrics werr not intended Ca be pro
yidcd fori or that, with such cxigencics "
mind Il was intended that the Limitations
81 the act should render the municipal nu
thoriiics pOwerless 90 u-e money actually "
the treasury. and not needcd Tor other pur
poses. Ia meet thcml IIon principle ant
I authority am persuaded that such n view
of the Law i unsound.
Hut u Is said that the legislature has III
cnnially provided taxes for oil these pur
/. IsOscs based upon the estimates furnishe,
b. the commissioners. This j. granted: bu
u cannot be- assumed that the Legislature
contemplated that these estimates should III
iniallible; that mistakes and miscalculation
would not be made. aud that no uniorcscei
causes would orcur 10 defeat we'll groundc,
. anticipaiionA The answer herr shows tia
miscalculations have been made. and tina
the tar levied Tor the past year Tor the boar
A.. OF health aud garbage service T. entirely In
adequate. arising from the mpid growth o
the city aud consequent increased demand
by this service.
IT N DECIDED
I. therefore decide. without doubt Of Oh
soundness ~ the conclusion. that under III
{ rules OF construction established BY III
b. weight VI. authority by the supreme cour
/. al the United States and II the State 81 Tcu
p ne.soc the power 81 the commissioners =
r appropriate the funds In question 10 lcgiu
{ mate municipal purposes y both implic
? frim the express grants Of power aud b,
{ cause II l. essential a. carry out the pun
| poses ~ the Law. The conclusion thu
h reached Is fortified by the Practical coistru'
4 ton tina, has been placed on the statute b